Defence will only succeed where the activity would not have taken place but for the receipt of the money. .
Boscawen - Lord Millet also endorsed change of position defence and said it should be available at law and in equity.
Problems for Common Law Tracing.
Common law tracing does not allow property to be traced into mixed funds e.g. money into a bank account. Tracing at common law may not be available to trust beneficiaries. .
EQUITABLE TRACING.
Possible to trace into mixed funds; B allowed to trace directly in equity; tracing in equity is against identifiable property in D's hands. Tracing in equity leads to a proprietary remedy. .
Advantages of proprietary right: .
(1) Successful tracing leads to a right in a thing - tracing permits recovery of value as represented by original or substitute property or a charge over original or substitute property in the hands of D. .
(2) Proprietary claims do not depend for their success upon the personal solvency of D - P will jump queue of creditors - property treated as never belonging to the defendant.
(3) P may recover the property even if it has increased in value or any profits made on it.
(4) Interest accrues from the date D acquired the property; (5) Limitation Act 1980 has no application to a proprietary claim; (6) An injunction may be available for proprietary claims. .
Limits to Equitable Tracing.
Tracing against bona fide purchasers for value - equitable tracing will not be permitted against a bona fide purchaser for value of the legal estate. .
Innocent volunteers - Re Diplock [1948].
Volunteer should not be treated as strictly as a person standing in a fiduciary relationship to the plaintiff. .
Tracing will only be available against volunteers à only if no injustice or inequity (see change of position defence);.
Where money had not been mixed à charities would hold that money on trust;.
Volunteer must have had some knowledge of the claimant's equitable interest;.